Professional Documents
Culture Documents
VIVIAN E. HAMILTON
Associate Professor of Law, William & Mary School of Law. B.A. Yale College, J.D.
Harvard Law School. I am grateful to Kerry Abrams, Naomi Cahn, June Carbone, Neal
Devins, James Dwyer, Rebecca Green, Rich Hynes, Timothy Zick, and the participants of
the University of Virginia Faculty Workshop Series for their helpful comments.
1817
1818 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
Age at marriage has for decades been the strongest and most unequivocal
predictor of marital failure. The likelihood of divorce nears eighty percent for
those who marry in mid-adolescence, then drops steadily. Delaying marriage
until the mid-twenties reduces ones likelihood of divorce to thirty percent.
Women who marry at age twenty-one or younger, moreover and one in ten
U.S. women do experience worse mental and physical health, attain less
education, and earn lower wages than those who marry later. Post-divorce,
they and their children tend to endure even greater economic deprivation and
instability than do never-married mothers, who will frequently have invested
more in market work and education.
While the social cost of early marriage is significant, U.S. policy disregards
the hundreds of thousands of young people currently married or divorced, as
well as those who may be contemplating early marriage. A comprehensive
analysis of early marriage and its regulation is overdue, and this Article
undertakes that task.
The Article argues that a historic confluence of cultural and structural
changes has simultaneously transformed the social function and meaning of
modern marriage and prolonged the course of development to adulthood. It
advances a new conception of marital capacity to supplant the current legal
concept of consent, which is inadequate in the context of marriage. This new
conception recognizes adolescents and emerging adults cognitive abilities to
understand and voluntarily consent to marriage, but also accounts for their
psychosocial immaturity and incomplete acquisition of other abilities required
to sustain modern marriage.
The median age at first marriage is rising, reflecting gradual social
adaptation to these cultural and structural changes. Legal adaptation,
however, has lagged. Even though law is only one of the structural influences
on family formation, legal change bringing the marital age in line with the
modern social institution will go far to alleviate the strain on individuals and
cost to society imposed by early marriage.
INTRODUCTION
In 2010, the U.S. Senate unanimously voted to enact the International
Protecting Girls by Preventing Child Marriage Act of 2010.1 The bill aimed
1 International Protecting Girls by Preventing Child Marriage Act of 2010, S. 987, 111th
Cong. (2010); 156 CONG. REC. S8353-55 (daily ed. Dec. 1, 2010). The bill never became
law, failing to pass in the House of Representatives. 156 CONG. REC. H8551-52 (daily ed.
Dec. 16, 2010). The House version of the bill had the initial support of 112 co-sponsors, but
opposition arose following last-minute circulation of a memo that erroneously claimed its
passage would authorize U.S.-funded abortions abroad. International Protecting Girls by
Preventing Child Marriage Act of 2009, H.R. 2103, 111th Cong. (2009) (listing bill sponsor
and original co-sponsors); Conor Williams, Child Marriage Bill UPDATE, WASH. POST
(Dec. 17, 2010, 11:50 AM), http://voices.washingtonpost.com/postpartisan/2010/12/child_m
arriage_bill_update.html. House members introduced another version of the bill, which was
2012] AGE OF MARITAL CAPACITY 1819
4 S. 987 2-3. The bill declared countries with high rates of marriages by those under
eighteen to be high-prevalence areas for child marriage and required the State Department
to provide status reports on the practice of child marriage, presumptively defining child
marriage for reporting purposes to mean marriage by individuals under the age of eighteen
if no legal minimum is stipulated by law. Id. 2.
5 Yann Le Strat, Caroline Dubertet & Bernard Le Foll, Child Marriage in the United
States and Its Association with Mental Health in Women, 128 PEDIATRICS 524, 526 (2011)
(drawing from a sample of over 24,000 American women and concluding that child
marriage increases the risk of lifetime psychological disorders in women). Le Strat and his
colleagues analyzed data drawn from the 2001 to 2002 National Epidemiologic Survey on
Alcohol and Related Conditions (a population-based, national, representative-sample
survey) to evaluate the impact of child marriage on the mental health of women in the
general adult population. Using a sample of more than 24,575 women, the researchers
found that women who married before age eighteen experienced higher rates of both
lifetime and current psychiatric disorders than did women who married as adults. The study
thus concluded that [c]hild marriage increases the risk of lifetime and current psychiatric
disorders in the United States. See id. at 524, 528. For a more detailed discussion of the
studys findings, see infra notes 217-219 and accompanying text.
6 U.S. CENSUS BUREAU, U.S. DEPT OF COMMERCE, MARITAL STATUS OF PEOPLE 15
YEARS AND OVER, BY AGE, SEX, PERSONAL EARNINGS, RACE, AND HISPANIC ORIGIN, at Table
A1 (2010) [hereinafter MARITAL STATUS OF PEOPLE 15 YEARS AND OVER], available at
http://www.census.gov/population/www/socdemo/hh-fam/cps2010.html.
7 ANDREW J. CHERLIN, THE MARRIAGE-GO-ROUND: THE STATE OF MARRIAGE AND THE
8THE NATL MARRIAGE PROJECT, THE STATE OF OUR UNIONS 2001: THE SOCIAL HEALTH
OF MARRIAGE IN AMERICA 19 (2001); Tim B. Heaton, Factors Contributing to Increasing
Marital Stability in the United States, 23 J. FAM. ISSUES 392, 407 (2002); Jeffry H. Larson &
Thomas B. Holman, Premarital Predictors of Marital Quality and Stability, 43 FAM. REL.
228, 230 (1994).
9 Heaton, supra note 8, at 407 fig.2.
10 Id.; see also NAOMI SEILER, CTR. FOR LAW & SOC. POLICY, IS TEEN MARRIAGE A
(2010); see also Karl L. Alexander & Thomas W. Reilly, Estimating the Effects of Marriage
Timing on Educational Attainment: Some Procedural Issues and Substantive Clarifications,
87 AM. J. SOC. 143, 143-44 (1981); Thomas Ewin Smith & Eugenia Hooker, Sex Differences
in Marriage and Parenthood as Factors Impeding Educational Attainment, 59 SOC. INQUIRY
343, 343 (1989).
14 Le Strat, Dubertet & Le Foll, supra note 5, at 527-28 ([C]ontrolling for
rate, and through this better understanding, to propose legal reform informed
by more than the simple empirical evidence of its failure.
The Article analyzes the legal and social history of marital age and its
regulation, as well as research from social anthropology and the social and
developmental sciences. It argues that a historic confluence of developments
in cultural and structural factors that influence marriage has simultaneously
transformed the social functions and meaning of modern marriage (increasing
the relational capacities required to sustain it) and prolonged the course of
development to adulthood (rendering adolescents and emerging adults whose
cognitive and psychological development we now know continues into the
early twenties even less likely to possess those requisite capacities).
To redress the inadequacy of our current legal framework, which conflates
capacity to consent with capacity to perform, this Article advances a new
conception of marital capacity. To give legally valid consent, a person must
possess the cognitive abilities to understand the basic nature of the marital
obligation and to voluntarily agree to marry. To sustain the modern marriage,
a person must possess core aspects of psychosocial maturity and other abilities.
The Article discusses research in the developmental sciences demonstrating
that young people have attained the former cognitive abilities by mid-
adolescence (ages fifteen or sixteen), but that they will not attain the latter
psychosocial maturity and other abilities until late adolescence/emerging
adulthood (the early twenties). It argues that marital capacity requires the
attainment of both.
The median age at first marriage is rising, reflecting gradual social
adaptation to these cultural and structural changes. Legal adaptation, however,
has lagged. Law is only one of the structural influences on family formation.
A legal structure that better corresponds to the nature and requirements of the
modern social institution can, however, go far to alleviate the strain on
individuals and cost to society imposed by early marriage. Law and legal
institutions create and support civil marriage, using it as a tool to achieve
socially desirable ends.16 State-supported privileges and other benefits linked
to marriage, while difficult to quantify, are vast. Economic benefits alone total
billions of dollars annually in direct federal and state payments, tax benefits,
and workplace-based benefits.17 It is debatable whether marriage in general
produces outcomes that justify the massive public investment in the institution.
16 June Carbone, Morality, Public Policy and the Family: The Role of Marriage and the
Public/Private Divide, 36 SANTA CLARA L. REV. 267, 269-70 (1996); Vivian Hamilton,
Mistaking Marriage for Social Policy, 11 VA. J. SOC. POLY & L. 307, 308-09 (2004).
17 Anita Bernstein, For and Against Marriage: A Revision, 102 MICH. L. REV. 129, 141,
166-69 (2003). Bernstein notes that [t]he United States government subsidizes marriage
through transfer payments and other supports that are not means tested. These payments
constitute a reward that taxpayers as a group bestow on a class of individuals based solely
on these persons being . . . married. Id. at 167-68. Social Security transfer payments and
Medicare benefits are just two examples of subsidies that reward marriage. Id. at 167, 169.
1822 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
That early marriage does not is apparent. This Article thus urges
reconsideration of state policies that give early marriages legal effect.
Part I provides historical, legal, and social context. It begins with the legal
history of marital age regulation, which underscores the once-essential
functions of marriage in society. It describes the current legal landscape,
which has not strayed far from its common law roots. It then examines the
significant and interrelated influence on marriage, and age at marriage, of
changing economic and cultural conditions. It turns to social anthropology for
an integrative account of the evolution of the social functions of marriage and
the meaning of marriage itself. These social changes have rendered marriage
less essential to individuals economic survival and social acceptance,
eliminated once-clearly defined spousal roles, making it necessary for
individual couples to negotiate them, and increased individuals expectations
of the marital relationship itself.
Part II examines the demographics of modern early marriage and the largely
overlooked yet overwhelming empirical data that reveals its social costs. Laws
universally require parents to consent to the marriages of children younger than
eighteen.18 Parental consent, however, safeguards child marriages against
negative outcomes insufficiently, if at all. The same can be said for delaying
marriage until eighteen, the near-universal age of legal majority.
Improvements in marital stability and outcomes appear only when couples
delay marrying until their early twenties.
Part III argues that the law has failed to keep pace with these significant
social developments. This Article argues that the social changes chronicled in
the previous Parts demonstrate that the psychosocial capacities required to
sustain a modern marriage have changed drastically over the last fifty years,
while the cognitive capacity to understand and voluntarily consent to marry
have remained essentially unchanged for centuries. It argues that the social
and legal factors that once justified early marriage either no longer exist, or are
sufficiently weak as to be outweighed by the states obligation to safeguard the
general welfare by at a minimum abandoning unreasonable policies
demonstrably in derogation of it. The Article briefly describes relevant aspects
of adolescent cognitive and psychological development, which continues well
into late adolescence and beyond, and the age-related attainment of marital
capacity.19
The Article concludes that states should return the presumptive age of
consent to twenty-one, permit younger individuals to marry with judicial not
parental consent, and withhold altogether legal recognition from marriages of
adolescents younger than eighteen.
20 See, e.g., Andrew J. Cherlin, American Marriage in the Early Twenty-First Century,
15 FUTURE CHILD. 33, 39-40 (2005) [hereinafter Cherlin, Marriage in the Early Twenty-First
Century] (Most analysts would agree that both economic and cultural forces have been
driving the changes in American family life over the past half-century. Analysts disagree
about the relative weight of the two, but . . . both have been important.); Jeremy Elliot
Uecker, Early Marriage in the United States: Why Some Marry Young, Why Many Dont,
and What Difference It Makes 40 (May 2010) (unpublished Ph.D. dissertation, University of
Texas at Austin) (on file with The University of Texas Libraries Digital Repository).
21 Cherlin, Marriage in the Early Twenty-First Century, supra note 20, at 40.
The legal origins of U.S. marriage, and the societal interests they aimed to
protect, indelibly shaped U.S. marriage itself and marital age law, which of
course later adapted to the distinctive American milieu.24 Essential aspects of
the historical and legal elements of marital age regulation remain, however. It
is to those aspects that this Article now turns.
27 Id. at 30-31.
28 Id. at 31.
29 Id.; see also NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE
the age of puberty, the age of fourteen for males fixed by Justinian was generally followed
throughout Western Europe, subject of course to the requisite consents by guardians and
parents.).
2012] AGE OF MARITAL CAPACITY 1825
basic to the Roman law.32 The weakening of family and parental control over
marriage led the propertied classes to resist these canonical introductions.33
After the Protestant Reformation, marriage regulation came under civil (as
opposed to purely religious) authority,34 but the English Parliament enacted no
statutory changes to then-existing marriage law.35 The post-Reformation
Church, on the other hand, sought greater formalization of couples entry into
marriage. It imposed new requirements that mandated public church
ceremonies presided over by clergy and parental consent to the marriages of
persons younger than twenty-one.36 The ecclesiastical courts that retained
jurisdiction over marriage litigation, however, continued to recognize the legal
validity of informal contract marriages that failed to comply with the new
formality requirements.37
34 STONE, FAMILY, SEX AND MARRIAGE, supra note 25, at 32; see also John Witte, Jr.,
From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition, in THE
FAMILY, RELIGION, AND CULTURE 42-44 (Don S. Browning & Ian S. Evison eds., 1997).
35 STONE, ROAD TO DIVORCE, supra note 32, at 56.
36 STONE, FAMILY, SEX AND MARRIAGE, supra note 25, at 32-33. Under Roman law, the
age of majority had been fourteen for males, and twelve for females. James, supra note 31,
at 23-25. In France, royal edicts quickly addressed the failure of the 1563 Council of Trent
to require parental consent prior to young persons marriages, requiring that any man under
age thirty and any woman under age twenty-five obtain parental consent prior to marriage.
STONE, ROAD TO DIVORCE, supra note 32, at 80.
37 David Lemmings, Marriage and the Law in the Eighteenth Century: Hardwickes
Marriage Act of 1753, 39 HIST. J. 339, 344 (1996). A contract marriage merely required the
oral agreement, expressed in the present tense, by a couple over the age of consent
fourteen for females, sixteen for males in the presence of two witnesses. 3 JOEL PRENTISS
BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE, AND EVIDENCE IN
MATRIMONIAL SUITS 63 (Boston, Little, Brown & Co. 1852) ([Mutual consent] is of the
essence of marriage; it constitutes of itself, and without the addition of any ceremonies, a
perfect marriage according to natural law; according to the canon law previous to the
Council of Trent; [and] perhaps according to the law of England as it stood before the
passage of the first marriage act . . . . (footnotes omitted)) [hereinafter BISHOP 1852];
STONE, FAMILY, SEX AND MARRIAGE, supra note 25, at 32-33; STONE, ROAD TO DIVORCE,
supra note 32, at 52; see also BISHOP 1852, supra, 164 (quoting Rose v. Clark, 8 Paige Ch.
574 (N.Y. Ch. 1841)). While the state might statutorily require compliance with certain
formalities, marriage was believed to exist in a state of nature and thus preceded the state.
Id. 68. Once a couple agreed to marry, theirs was a marriage in the sight of God, even
in the absence of all civil and religious institutions. Id. [T]he law of nature enables all
persons in whom no natural impediment exists, to intermarry by mere words of consent,
whenever they please. 3 JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE
AND DIVORCE, AND EVIDENCE IN MATRIMONIAL SUITS 144b (3d ed., rev. and enlarged,
Boston, Little, Brown & Co. 1859).
1826 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
By the seventeenth century, the public especially the propertied elite and
clergy both increasingly regarded the church wedding, preceded by either a
series of public announcements known as banns or by the procurement of a
marriage license, as essential prerequisites to a valid marriage.38 The civil
common law courts, which decided property claims,39 thus came to require a
public church wedding before assigning full property and inheritance rights,
treating contract marriages as valid but irregular.40
Many couples most notably minors wishing to marry against their parents
wishes began paying corrupt clergymen to secretly preside over and register
marriage ceremonies.41 These clandestine marriages, despite noncompliance
with formality requirements, were legally valid and binding (likely because
they had been solemnized by church clergy).42 Thus, unlike contract marriages
that had not been solemnized, clandestine marriage conferred full property and
inheritance rights.43
As growing numbers of young people secretly married against their parents
wishes, parents of the propertied classes, anxious to control and pass on family
property, sought to reassert control over their childrens marriages.44 They
ultimately turned to Parliament to put an end to legal recognition of clandestine
and contract marriages,45 and in 1753 Parliament passed the Act for the
better preventing of clandestine Marriages.46 Among the Acts stated
purposes was the prevent[ion of] marriages among the children of the social
elite which were not sanctioned by their parents and other relations.47
38 STONE, ROAD TO DIVORCE, supra note 32, at 53. At the Council of Trent in 1563, the
post-Reformation Catholic Church added the requirement of the public church ceremony
presided over by a priest. Id. at 55.
39 STONE, FAMILY, SEX AND MARRIAGE, supra note 25, at 32. After the Protestant
Reformation, marriage regulation came under civil (as opposed to purely religious)
authority, although marriage litigation remained within the jurisdiction of the ecclesiastical
courts. Id. at 32; WITTE, supra note 34, at 42-44.
40 STONE, FAMILY, SEX AND MARRIAGE, supra note 25, at 32-34.
41 Id. at 33. Numerous churches and neighborhoods, such as the Fleet in London,
became infamous for their clergymens willingness to flout official requirements and
perform marriage ceremonies for pay. Id.
42 STONE, ROAD TO DIVORCE, supra note 32, at 96.
the participation of clergy and the recording of the ceremonies in a registry. Id. at 98;
Lemmings, supra note 37, at 345. The ecclesiastical courts instead focused enforcement and
punishment efforts on clergy who performed the illegal ceremonies. STONE, FAMILY, SEX
AND MARRIAGE, supra note 25, at 32-33; Lemmings, supra note 37, at 344-45.
44 STONE, FAMILY, SEX AND MARRIAGE, supra note 25, at 35.
45 Id.
47 Id. at 347. The Act gave parents an effective veto over the marriages of minors, with
fathers rights having priority over mothers. Id. at 348-49. The Act preferred fathers or
testamentary guardians to mothers. Id. And while minors could appeal the veto of a
2012] AGE OF MARITAL CAPACITY 1827
Commonly known as Hardwickes Marriage Act, the measure stated the basic
elements of English marriage law for nearly a century after its passage.48
Hardwickes Marriage Act declared altogether void both contract marriages
and marriages entered by those under twenty-one absent parental consent.49 In
doing so, it represented, according to one historian, a uniquely authoritarian
assertion of the economic and political interests of parents over their children
and an unprecedented enforcement of parental and familial interest.50
Hardwickes Marriage Act reinforced the centrality of marriage as the
institution through which families controlled property and wealth. Inheritance
laws allowed families to enter advantageous alliances through marriages that
would produce heirs to whom family property would predictably devolve.
Because Church law dictated that only legitimate children could inherit,
ensuring the legal validity of marriage was critical. Hardwickes Marriage
Act, by rendering altogether void noncompliant marriages and thus potentially
depriving a family of legitimate heirs, could be harsh in its effects.51 The
British Parliament, in the 1820s, sought to ameliorate these harsh effects and
eventually repealed the Act in that same decade.52 The laws of the American
guardian or mother to the Court of Chancery, they could take no appeal from a paternal
veto, though the fathers refusal be ever so whimsical or selfish. Id. at 349 (citing 15 THE
PARLIAMENTARY HISTORY OF ENGLAND 59 (London, T.C. Hansard 1813)). Through this
refusal to constrain fathers, the Act recognized the economic interests of the family and
reinforced paternal prerogative to make decisions affecting those interests. Lemmings,
supra note 37, at 345-50.
48 STONE, ROAD TO DIVORCE, supra note 32, at 123.
49 Lemmings, supra note 37, at 346-48. By either dissenting to the bann or refusing to
consent to the issuance of a license, parents who objected to a match could prevent a minor
childs marriage. Id. at 340.
50 Id. at 341-42. Hardwickes Marriage Act explicitly required parental consent to the
issuance of marriage licenses but not banns to minors, a fact to which some
commentators have drawn attention. See, e.g., Lynn D. Wardle, Rethinking Marital Age
Restrictions, 22 J. FAM. L. 1, 7 (1984). Other commentators have observed that it was
unnecessary for the Act to address banns, given that parental opposition to a bann sufficed
to block the subsequent marriage (putting the community on notice of a potentially improper
union in time to lodge objections was, in large part, the purpose of the publication
requirement). Lemmings, supra note 37, at 342 n.11. In addition, the parental notification
requirement preexisted Hardwickes Marriage Act, reflecting concern with underage
marriage, by more than a century.
51 The nullification of a marriage, moreover, impeded the ability of the (now-unchaste)
the provision nullifying the marriages of minors lacking parental consent. The amended law
continued to require minors to swear that they had obtained parental consent and to provide
written evidence of that consent before a license would issue. Although a noncompliant
marriage would not be nullified under the new law, willful perjury or fraud carried severe
penalties. Id. In 1823, Parliament formally repealed the remainder of the Act. Id. It
imposed the additional penalty of forfeiture of material benefits from the marriage on
1828 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
minors marrying without the requisite parental consent, but removed nullification
requirements for marriages entered absent full compliance with procedural requirements.
Parliament did, however, require the nullification of marriages entered by couples who had
willfully flouted the formal marriage requirements (i.e., the publication of banns or purchase
of a license, followed by a church marriage). Id. With the exception of the removal of
nullification requirements for marriages entered into without parental consent or with minor
procedural defects (the main purpose of which, according to historian David Lemmings, was
to make divorce less easily available based on these defects), English marriage law into the
late 19th century diverged relatively little from the earlier provisions of Hardwickes
Marriage Act. Id.
53 HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES
founding. BISHOP 1852, supra note 37, 164, 167; COTT, supra note 29, at 5-6.
55 See, e.g., CLARK, supra note 53, 2.1-.4. These early doctrines, however, responded
to social and legal concerns of a historical context dramatically different from our own.
Early parental consent requirements, for example, recognized parents historical rights to the
labor and earnings of their children. Perhaps as important, parental consent requirements
by empowering parents to veto improvident marriages reflected the importance of forming
family alliances through marital unions in order to expand family wealth, and the
presumption of a marriages validity reflected the importance of identifying legitimate heirs
to preserve it. Although parental consent requirements endure, these justifications would
hardly support their continued existence.
56 MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN
common.58 Some couples may have resisted traditional religious and civic
control over matrimony, others may have balked at the administrative costs of
formalization, and still others in more sparsely settled regions may simply have
lacked access to officials authorized to sanction and perform marriage
ceremonies.59 Led by the judiciary, American law responded to noncompliant
marriages, not by strictly enforcing marriage regulations, but instead by
extending legal recognition to all but those marriages marred by the most
egregious impediments.60 In American courts, contract or irregular
marriage evolved into common law marriage, and judges relaxed evidentiary
requirements for demonstrating its existence.61
Every state adopted the English age of legal majority twenty-one as the
statutory age of presumptive marital consent, when individuals marriages no
longer required parental involvement.62 At the same time, however, most
states failed to explicitly repudiate the English common law ages of
presumptive marital consent twelve for females and fourteen for males.63 In
the absence of statutory language explicitly expressing legislative intent to
invalidate the common law, state courts consistently upheld the validity of
marriages of individuals under twenty-one who met the common law age of
presumptive consent irrespective of state statutes that required parental
consent to the marriages of those individuals.64
59 Id. at 68-69.
60 Id. at 69-70.
61 Id. at 69-70, 79. Judges facilitated couples efforts to prove their marriages by
formally receiving into American common law the old rule that marriage could be
presumed from the acknowledgements, cohabitation, and reputation of a couple. Id. at 79.
Statutorily imposed formality requirements thus became directory, not mandatory. Id. at
74.
62 Id. at 106; see also RESTATEMENT (SECOND) OF CONTRACTS 14 cmt a. (1981); Robert
F. Drinan, American Laws Regulating the Formation of the Marriage Contract, 383
ANNALS AM. ACAD. POL. & SOC. SCI. 48, 50, 55 (1969).
63 GROSSBERG, supra note 56, at 106. English common law retained the Roman
minimum age of marital consent. BISHOP 1852, supra note 37, 192; Id. 174 (stating that
[t]he consent of parents is not, at common law, essential to the validity of the marriages of
minors (footnotes omitted)). The validity of a marriage required only suitable
contracting parties, and a free consent, to render it valid. GROSSBERG, supra note 56, at
103 (quoting FRANCIS HILLIARD, THE ELEMENTS OF LAW 15 (1835)).
64 GROSSBERG, supra note 56, at 106-07, 143. The U.S. Supreme Court noted that the
common law had long recognized the validity of informal marriages and held that, a statute
may take away a common law right; but there is always a presumption that the legislature
has no such intention, unless it be plainly expressed. Meister v. Moore, 96 U.S. 76, 79
1830 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
(1877).
65 LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 141 (1985).
66 J. Shoshanna Ehrlich, You Can Steal Her Virginity but Not Her Doll: The Nineteenth
Century Campaign to Raise the Legal Age of Sexual Consent, 15 CARDOZO J.L. & GENDER
229, 233 (2009).
67 Id. at 230 (quoting ALAN HUNT, GOVERNING MORALS: A SOCIAL HISTORY OF MORAL
REGULATION 77 (1999)).
68 Id. at 229-31.
69 GROSSBERG, supra note 56, at 141 (citing FRED S. HALL & ELIZABETH W. BROOKE,
71 GROSSBERG, supra note 56, at 141-42; Ehrlich, supra note 66, at 235.
74 Id. at 142, 144-46; see also 1 BISHOP 1852, supra note 37, 199. At common law,
however, if either party was below the age of seven, the resulting marriage was altogether
void. Id. 194.
75 BISHOP 1852, supra note 37, 196; see also, e.g., Robinson v. Commonwealth, 212
S.W.3d 100, 104 (Ky. 2006) (holding that a marriage of thirteen-year-old girl to an adult
man was voidable, not void); BISHOP 1852, supra note 37, 199.
2012] AGE OF MARITAL CAPACITY 1831
3. Modern Regulation
Age twenty-one continued to be the universal age of legal majority and
statutory age of marital capacity until the mid-twentieth century.80 Prompted
by wartime needs, Congress lowered the draft age during World War II from
twenty-one to eighteen.81 Legal restrictions that denied rights to eighteen- to
twenty-year-olds came under scrutiny soon thereafter.82 By the early 1970s,
approximately half of the states had lowered their ages of marital consent to
eighteen.83
REV. STAT. 2-4-211 (2012)) (holding that the common law age of consent for marriage
was fourteen for males and twelve for females, and remanding the case to the trial court for
an evidentiary hearing on the existence of a common law marriage between a fifteen-year-
old girl and her putative common law adult spouse); see also In re Pace, 989 P.2d 297, 298
(Kan. Ct. App. 1999) (stating that [t]he common-law ages of consent are 14 for a male and
12 for a female[, and that a] minor who has reached the age of consent does not need the
consent of a parent to enter into a valid common-law marriage). Kansas later raised the
state minimum age of consent to eighteen by statute. KAN. STAT. ANN. 23-101(b) (2007)
(The state of Kansas shall not recognize a common-law marriage contract if either party to
the marriage contract is under 18 years of age.).
79 J.M.H., 143 P.3d at 118 (quoting COLO. REV. STAT. 2-4-211 (2012)).
80 WENDELL W. CULTICE, YOUTHS BATTLE FOR THE BALLOT: A HISTORY OF VOTING AGE
IN AMERICA 72 (1992).
81 See RESTATEMENT (SECOND) OF CONTRACTS 14 cmt. a, reporters note (1981) (The
impetus for the lowering of the age of majority probably came from the widespread draft of
those under twenty-one and from the lowering of the voting age to eighteen.).
82 Advocates argued that if eighteen-year-olds were to bear the obligations of adulthood,
in particular wartime military service, they ought also to receive all the legal benefits of
adulthood. CULTICE, supra note 80, at 20-21 (quoting 88 CONG. REC. 8316 (1942)
(statement of Sen. Arthur Vandenberg)).
83 Note, The Uniform Marriage and Divorce Act Marital Age Provisions, 57 MINN. L.
REV. 179, 187 n.42 (1972) (citing statutory provisions of states that had, by 1972, lowered
the marriage age). In 1974 the Twenty-Sixth Amendment made eighteen the national voting
1832 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
85 Id. 203.
86 Id. 205.
87 Id. 208. Minors or their parents could bring suit to have the marriage declared
invalid, but parents retained the right to do so only until the minor reached the age at which
he or she could marry without the required consent. Id.
88 MISS. CODE ANN. 93-1-5 (2007); NEB. REV. STAT. 42-102 (2008); see also Roper
v. Simmons, 543 U.S. 587 app. D (2005); Pamela E. Beatse, Note, Marital Rights for Teens:
Judicial Intervention That Properly Balances Privacy and Protection, 2009 UTAH L. REV.
625, 628 n.18 (gathering statutes regulating marriage). The Mississippi statute has not been
challenged, although its differential treatment of males and females renders it
constitutionally vulnerable under current equal protection doctrine. See, e.g., Frontiero v.
Richardson, 411 U.S. 677 (1973).
89 See generally Marriage Laws of the Fifty States, the District of Columbia and Puerto
91
Lawrence v. Texas, 539 U.S. 558 (2003); Eisenstadt v. Baird, 405 U.S. 438 (1972);
Griswold v. Connecticut, 381 U.S. 479 (1965).
92 See, e.g., Trimble v. Gordon, 430 U.S. 762, 776 (1977) (invalidating state law
(1988). Oppenheimers theory has since received significant empirical confirmation. See,
e.g., Kim L. Lloyd & Scott J. South, Contextual Influences on Young Mens Transition to
First Marriage, 74 SOC. FORCES 1097, 1101-02 (1996); Valerie Kincaide Oppenheimer,
Matthijs Kalmijn & Nelson Lim, Mens Career Development and Marriage Timing During
a Period of Rising Inequality, 34 DEMOGRAPHY 311 (1997); Yu Xie et al., Economic
1834 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
Potential and Entry into Marriage and Cohabitation, 40 DEMOGRAPHY 351 (2003).
99 Catherine A. Fitch & Steven Ruggles, Historical Trends in Marriage Formation: The
United States 1950-1990, in THE TIES THAT BIND: PERSPECTIVES ON MARRIAGE AND
COHABITATION 59 (Linda J. Waite et al. eds., 2000).
100 Michael R. Haines, Long Term Marriage Patterns in the United States from Colonial
Times to the Present, 14-15 (Natl Bureau of Econ. Research, Working Paper No. h0080,
1996), available at http://ssrn.com/abstract=190420.
101 Id.; Uecker, supra note 20, at 8.
102 Haines, supra note 100, at 35-36.
103 Id. at 36.
104 Uecker, supra note 20, at 8; see also Christine Bachrach et al., The Changing Shape
of Ties That Bind, in THE TIES THAT BIND, supra note 99, at 1; Haines, supra note 100, at 27.
105 Haines, supra note 100, at 35-36.
107 U.S. CENSUS BUREAU, U.S. DEPT OF COMMERCE, PERCENT OF PEOPLE 25 YEARS AND
OVER WHO HAVE COMPLETED HIGH SCHOOL OR COLLEGE, BY RACE, HISPANIC ORIGIN AND
SEX: SELECTED YEARS 1940 TO 2002, at Table A-2 (2003), available at www.census.gov/po
pulation/socdemo/education/tabA-2.pdf.
108 U.S. CENSUS BUREAU, U.S. DEPT OF COMMERCE, ESTIMATED MEDIAN AGE AT FIRST
110 Id.
111 Id.
112 Id.
113 Oppenheimer, Kalmijn & Lim, supra note 98, at 311; Megan M. Sweeney, Two
Decades of Family Change: The Shifting Economic Foundations of Marriage, 67 AM. SOC.
REV. 132 (2002).
114 See Sweeney, supra note 113, at 132.
Teens Through the Twenties, 55 AM. PSYCHOLOGIST 469, 478 (2000). The U.S. Bureau of
Labor Statistics predicts that the number of computer specialist occupations, specifically
software engineers, systems analysts, and data analysts, will increase by forty-two percent
between 2006 and 2016, and that nearly all of these will require some form of advanced
degree. See Arlene Dohm & Lynn Shniper, Employment Outlook: 2006-16: Occupational
Employment Projections to 2016, MONTHLY LAB. REV., Nov. 2007, at 86, 97 tbl.3, 98
(2007), available at http://www.bls.gov/opub/mlr/2007/11/art5full.pdf.
117 Arnett, supra note 116, at 478.
118 U.S. CENSUS BUREAU, supra note 108. The median marriage age reached twenty-two
in 1980 returning, after nearly a century, to its 1890 mark and has continued upwards.
Id.
1836 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
marrying later in life now than they have at any time in the nations history.
Indeed by 2009 the median age at marriage reached a historic high of twenty-
eight for men and twenty-six for women.119
The industrial and postindustrial economies wrought radical changes in both
the nature of work and the composition of the workforce. Mens work first
moved outside of the home, shop, or farm and into the factory. Women
followed men into the paid workforce in subsequent decades, although
generally driven less by the carrot of economic prosperity than by the stick of
economic necessity.120 Large-scale changes in the nature of individuals work
and participation in the national economic life have interrelated, moreover,
with changes in their home lives including ongoing evolutions in the nature
of marriage relationships, family functioning more generally, and the role that
marriage itself plays, and is expected to play, in individuals lives.
119
Id.
120
Cherlin, Marriage in the Early Twenty-First Century, supra note 20, at 39-40.
121 Id. at 40.
& FAM. 848, 854 (2004) [hereinafter Cherlin, Deinstitutionalization of Marriage] (citing
LIONEL TIGER & ROBIN FOX, THE IMPERIAL ANIMAL (1971)).
123 Id.
124 Id.
2012] AGE OF MARITAL CAPACITY 1837
125 See supra note 29 and accompanying text; see also Hamilton, supra note 24, at 49.
126 Cherlin, Deinstitutionalization of Marriage, supra note 122, at 851-52.
127 COTT, supra note 29, at 6-7.
128 Id.
129 Id. at 7.
130 Id.
131 Id. (describing the doctrine of coverture as a complete transfer of the wifes civic
133 Id.
135 Cherlin, Marriage in the Early Twenty-First Century, supra note 20, at 40.
139 Id.; see also Cherlin, Marriage in the Early Twenty-First Century, supra note 20, at
40.
140 Vannoy, supra note 115, at 256.
142 Sociologist Ernest Burgess coined the term in the mid-twentieth century. See ERNEST
144 Id. at 852. Historian Stephanie Coontz noted that even entering the 1960s, nothing
seemed more obvious . . . than the preeminence of marriage in peoples lives and the
2012] AGE OF MARITAL CAPACITY 1839
150 Id.
154 See ARLIE HOCHSCHILD & ANN MACHUNG, THE SECOND SHIFT: WORKING PARENTS
AND THE REVOLUTION AT HOME 11 (1989); JOAN WILLIAMS, UNBENDING GENDER: WHY
FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT 16 (1999).
1840 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
that defined for individuals their roles within marriage blurred, then all but
disappeared, making the roles of husbands and wives flexible and negotiable.
Marriage gradually lost its instrumental value as the sole socially acceptable
path to intimate relationship, economic security, and family life.155
Research suggests that expectations of women and men for role sharing and
equality within contemporary marriages heightened the level of tension within
marriages.156 Spouses expectations of their marital relationships and their
companions grew. The performance of pre-defined gendered spousal roles
(provider, homemaker) no longer sufficed to define a satisfactory or good-
enough marriage.157 Spouses might be dutiful homemakers and providers, but
they nonetheless began viewing the concept of marriage as fundamentally
flawed if it no longer met their desire for love and intimacy. The measure of
marital satisfaction thus shifted from [the spousal] role to self and self-
fulfillment.158
The progressive destigmatizing and greater availability of divorce began to
make exit from unhappy marriages easier.159 It thus largely came to be that
neither social nor economic necessity compelled individuals to enter or remain
in marriages.160 The companionate yet essentially role-based marriages of the
early and mid-twentieth century thus evolved into what sociologists have
termed the modern individualized marriage.161
Marriage is no longer essential to social acceptance or economic survival
and has thus lost some of its instrumental value.162 It nonetheless remains
central to the self-identities of many individuals, for whom it largely retains its
symbolic and personal value.163 If anything, these have increased as couples
embrace individualized marriage as the cultural standard.164
155 See Vivian Hamilton, Will Marriage Promotion Work?, 11 J. GENDER RACE & JUST.
1, 8-9 (2007); Wendy D. Manning et al., The Changing Institution of Marriage:
Adolescents Expectations to Cohabit and to Marry, 69 J. MARRIAGE & FAM. 559, 560
(2007).
156 Paul R. Amato & Alan Booth, Changes in Gender Role Attitudes and Perceived
(1987).
159 Paul R. Amato, Transformative Processes in Marriage: Some Thoughts from a
Sociologist, 69 J. MARRIAGE & FAM. 305, 309 (2007) (observing that spouses in modern
marriages expect the marital relationship to fulfill their needs for personal growth and self-
actualization, and that [i]f the marital relationship no longer meets these needs, then
spouses feel justified in jettisoning the relationship to seek out new partners who better meet
these needs).
160 COONTZ, supra note 144, at 247.
170 Id. at 18 (citing Diane K. McLaughlin et al., Some Women Marry Young: Transitions
172 NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES: LEGAL
POLARIZATION AND THE CREATION OF CULTURE 2-3, 118-19 (2010) (discussing the
opposition of conservative and religious parents to making the morning-after pill available
to those younger than eighteen, and concluding that [r]ed families would accordingly like
to reinforce parental control over wayward teens and make it harder to escape the
consequences of improvident conduct).
173 Religious traditions place different types of emphasis on familism, which, according
to some scholars, influences adherents marriage patterns. Xiaohe Xu, Clark D. Hudspeth &
John P. Bartkowski, The Timing of First Marriage: Are There Religious Variations?, 26 J.
FAM. ISSUES 584 (2005) (exploring the correlation between religion and marriage timing and
considering the role of familism a cultural tendency to focus on the family more than the
individual). Conservative Protestants and Mormons are the most likely to marry early. Id.
at 588.
174 Id. at 589; see also MARK D. REGNERUS, FORBIDDEN FRUIT: SEX & RELIGION IN THE
178 Id.
180 Id. at 609-10; Xu, Hudspeth & Bartkowski, supra note 173, at 607-08. Although
183 Id.
184 Id.
185 Id.
186 Matthew E. Dupre & Sarah O. Meadows, Disaggregating the Effects of Marital
Trajectories on Health, 28 J. FAM. ISSUES 623, 625 (2007); Mary Rogers Gillmore et al.,
Marriage Following Adolescent Parenthood: Relationship to Adult Well-Being, 70 J.
MARRIAGE & FAM. 1136, 1136 (2008) (gathering studies).
187 LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED
PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 47-52 (2000); Terrance J.
Wade & David J. Pevalin, Marital Transitions and Mental Health, 45 J. HEALTH & SOC.
BEHAV. 155 (2004); Linda J. Waite, Does Marriage Matter?, 32 DEMOGRAPHY 483 (1995).
188 Bernstein, supra note 17, at 178-80; Kristi Williams, Has the Future of Marriage
Marital History Matter? Marital Status and Wealth Outcomes Among Preretirement Adults,
1844 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
suggesting that marriage alone cannot account for the greater well-being of
married individuals; instead, individuals with greater well-being before
marriage are more likely to attract marriage partners and sustain marriages.190
A large and growing body of research identifies social costs associated with
early marriage,191 while there is little evidence of offsetting benefits.192 For
individuals to benefit from marriage, moreover, their marriages must remain
intact. Early marriages, however, are unlikely to do so.193 The following
Sections examine the costs of early marriages.
on Selection into Marriage, 54 J. MARRIAGE & FAM. 901 (1992); Alois Stutzer & Bruno S.
Frey, Does Marriage Make People Happy, or Do Happy People Get Married?, 35 J. SOCIO-
ECON. 326 (2006) (finding that part of the association between marriage and mental health is
due to selection, as those with better mental health are also more likely to marry). But cf.
Kathleen A. Lamb, Gary R. Lee, & Alfred DeMaris, Union Formation and Depression:
Selection and Relationship Effects, 65 J. MARRIAGE & FAM. 953 (2003) (finding no evidence
of a selection effect with respect to depression, education, employment, income, or physical
disability).
191 See infra Parts II.B.1-4. Research to date generally supports the conclusion that
marrying early can lead to added stress and disadvantage, and ultimately poor health,
because important socioeconomic resources may be forfeited (e.g., education). Dupre &
Meadows, supra note 186, at 626.
192 See, e.g., SEILER, supra note 10, at 8 (stating, in an article published in 2002, that an
194 CAHN & CARBONE, supra note 172, at 55; THE NATL MARRIAGE PROJECT, supra note
8, at 19; Allan Booth & John N. Edwards, Age at Marriage and Marital Instability, 47 J.
MARRIAGE & FAM. 67, 68, 71 (1985); Heaton, supra note 8, at 407; Larson & Holman,
supra note 8, at 230. Historian Lawrence Stone noted that cultural trends throughout the
Western world contributed to the rise of twentieth-century divorce rates. He observed that
[a] significant decline in the age of marriage was also a factor in the 1960s, since teenage
marriages were almost twice as likely to break up as those contracted at a later age. STONE,
ROAD TO DIVORCE, supra note 32, at 403.
2012] AGE OF MARITAL CAPACITY 1845
and most consistent predictors of marital stability ever found by social science
research.195 Marriages in general have mediocre chances of enduring
altogether, about half of all marriages will end in divorce.196 Early marriages,
however, are significantly more likely to fail than are marriages entered later.
Of marriages entered at age twenty-five or later, fewer than thirty percent end
in divorce.197 Of marriages entered before age eighteen, on the other hand,
nearly seventy percent end in divorce.198 The earliest marriers, those
adolescents who enter marriage in their mid-teens, experience marital failure
rates closer to a sobering eighty percent.199 Not until age twenty-two does
marital stability improve significantly and do marriage dissolution rates begin
to level off, although marriages entered at later ages are more stable still.200
Delaying marriage by even a single year significantly reduces the odds of
dissolution.
A closer examination of the divorce rate over the last several decades
reveals the significance of age at marriage on marital stability: The divorce rate
increased through the 1970s until 1980, leveled off for a couple of years, and
has since declined modestly.201 Over the same period, the median age at
marriage steadily increased.202 If it had not, the divorce rate would have
increased rather than decreased.203 In other words, [a]ll of the decline in
dissolution can be accounted for by the rising age at marriage.204
If divorce left family members more or less in the same position they would
have been in had the couple never married, the high dissolution rate of early
marriage might cause less consternation. Mental health studies have shown,
however, that the negative psychological effects of divorce are greater than the
195 THE NATL MARRIAGE PROJECT, supra note 8, at 19; Warren Clark & Susan
Crompton, Till Death Do Us Part? The Risk of First and Second Marriage Dissolution, 11
CAN. SOC. TRENDS 24, 25 (2006).
196 National Marriage and Divorce Rate Trends, supra note 7; see also CHERLIN, THE
200 Heaton, supra note 8, at 407. While age at marriage correlates with marital instability
for both White and African American women, there is evidence that the correlation is
stronger for White women. For White women, marrying during adolescence results in a
fifty-five percent higher risk of marital disruption than does marrying between the ages of
twenty-three and twenty-nine; for African American women, the risk of disruption is forty
percent higher than marrying between twenty-three and twenty-nine. Megan M. Sweeney &
Julie A. Phillips, Understanding Racial Differences in Marital Disruption: Recent Trends
and Explanations, 66 J. MARRIAGE & FAM. 639, 644-45 (2004).
201 Heaton, supra note 8, at 398.
202 Id.
204 Id.
1846 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
positive effects of entering marriage.205 For unwed mothers who marry then
divorce, moreover, the risk of poverty is higher than it is for their counterparts
who never marry.206
205 Williams & Umberson, supra note 188, at 93-94; Zheng Wu & Randy Hart, The
Effects of Nonmarital Union Transition on Health, 64 J. MARRIAGE & FAM. 420 (2002).
206 SEILER, supra note 10, at 8.
207 Dahl, supra note 13, at 691; Daniel Klepinger et al., How Does Adolescent Fertility
Affect the Human Capital and Wages of Young Women, 34 J. HUM. RESOURCES 421, 443
(1999). See generally David C. Ribar, Teenage Fertility and High School Completion, 76
REV. ECON. & STAT. 413 (1994) (examining the impact of teen childbearing on high school
completion rates).
208 See, e.g., Lichter, Graefe & Brown, supra note 15, at 73.
209 SEILER, supra note 10, at 8-9 (citing Steven D. McLaughlin et al., The Effects of the
Sequencing of Marriage and First Birth During Adolescence, 18 FAM. PLAN. PERSP. 12, 14
tbls.1 & 2 (1986)).
210 Id. at 8; Deborah Kalmuss & Pearila Brickner Namerow, Subsequent Childbearing
Among Teenage Mothers: The Determinants of a Closely Spaced Second Birth, 26 FAM.
PLAN. PERSP. 149, 151 (1994).
211 Dianne Scott-Jones, Educational Levels of Adolescent Childbearers at First and
213 Id.
2012] AGE OF MARITAL CAPACITY 1847
Early marriage also correlates with future poverty. Researchers have only
recently begun to study causality in the context of teen marriage. Economist
Gordon Dahl studied more than 140,000 early adolescent marriages (those
involving women who were younger than sixteen when they married), finding
that early marriages have had a strong negative effect on future poverty, and
that this effect is not due to self-selection.214 Women who married young were
significantly thirty-one percentage points more likely to live in poverty
later in life than were women who delayed marriage.215 The negative effect of
early marriage is stronger even than the sizable negative effect of failing to
complete high school; women who dropped out of school were eleven
percentage points more likely to be poor when older.216
219 Id. at 527. Other researchers have found maternal depression to be greater for women
with younger age at first birth, falling to its lowest levels for women who first give birth
around age thirty and correlating with later age of first marriage, higher educational
attainment, and greater job security. John Mirowsky & Catherine E. Ross, Depression,
Parenthood, and Age at First Birth, 54 SOC. SCI. & MED. 1281 (2002).
220 Uecker, supra note 20, at 170-71, 170 tbl.5.2.
221 Id. at 169-71. Those who were engaged to be married reported levels of depressive
symptoms comparable to those who first married at age twenty-two or older. Id. More
young adults who have ever been married, however, report that they are very satisfied with
their lives than do those who have never been married. Nearly thirty-six percent of young
adults in a dating relationship but never married report high overall life satisfaction,
compared with nearly forty-eight percent of those who have ever been married. Levels of
1848 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
life satisfaction among married young adults vary significantly by age of marriage,
however: of those first married at eighteen or younger, nearly forty-one percent report high
life satisfaction, compared to more than fifty-five percent of those first married at age
twenty-two or older. Id.
222 Dupre & Meadows, supra note 186.
224 Id. Dupre and Meadows also posited that females marrying early may be more likely
to have psychological disorders that predispose them to illness. Id. The Le Strat, Dubertet
& Le Foll study sought to more precisely isolate the effect of child marriage on the
development of mental disorders by including in their analyses only those psychiatric
disorders with an age at onset later than the age at first marriage. Le Strat, Dubertet & Le
Foll, supra note 5, at 527.
225 Dupre & Meadows, supra note 186, at 644.
226 LAWRENCE A. GREENFELD ET AL., U.S. DEPT OF JUSTICE, VIOLENCE BY INTIMATES:
DEVELOPMENTAL PERSPECTIVE (2003); Nan Marie Astone, Are Adolescent Mothers Just
Single Mothers?, 3 J. RES. ON ADOLESCENCE 353 (1993); Rebekah L. Coley & P. Lindsay
Chase-Lansdale, Adolescent Pregnancy and Parenthood: Recent Evidence and Future
Directions, 53 AM. PSYCHOL. 152 (1998); Ariline T. Geronimus, Damned If You Do:
Culture, Identity, Privilege, and Teenage Childbearing in the United States, 57 SOC. SCI. &
MED. 881 (2003); Greg Pogarsky et al., Developmental Outcomes for Children of Young
Mothers, 68 J. MARRIAGE & FAM. 332 (2006); Greg Pogarsky, Alan J. Lizotte & Terence P.
Thornberry, The Delinquency of Children Born to Young Mothers: Results from the
Rochester Youth Development Study, 41 CRIMINOLOGY 101 (2003).
2012] AGE OF MARITAL CAPACITY 1849
women who married before eighteen were also likely to be pregnant (forty-
eight percent, compared to three percent of women who married as adults).228
Research has consistently shown that the children of mothers who begin
childbearing at a young age have increased risks of various adverse outcomes.
The elevated risks extend to children born later in the mothers life,229 and
include behavior problems and educational underachievement.230 The risk of
adverse outcomes for the children of young mothers continues into adulthood,
and includes a greater likelihood of poverty,231 unemployment,232 and
becoming young parents themselves.233
Researchers posit that factors tending to coexist alongside early parenthood
contribute to adverse outcomes for children.234 For example, women who
initiate childbearing at young ages are more likely to experience disorder in the
process of family formation, . . . [and] the stress associated with structural
disadvantage and family disruption increases the likelihood of the mothers
own antisocial behavior, especially drug use.235 Conversely, as Professors
Cahn and Carbone have observed, older parents tend to bring greater resources
financial and emotional to childrearing. They point out that, in addition to
generally being wealthier, [p]arents in their late 20s are better educated,
psychologically more mature, and more likely to interact with and stimulate
young children than are younger parents.236
Studies of the developmental outcomes of children born to young mothers
have not, however, isolated the mothers marital status. It is thus possible that
children of young married mothers fare better than those raised by unmarried
young mothers. An intact marital family may conceivably insulate children of
young mothers from experiencing the effects of the various risk factors
associated with early childbearing.
At the same time, however, early marriers tend to endure many of the same
life experiences associated with adverse outcomes for children: They are less
likely to complete high school and attain the social and human capital needed
Maternal Age at First Birth and Boys Risk for Conduct Disorder, 10 J. RES. ON
ADOLESCENCE, 417, 432-33 (2000).
231 Sara Jaffee et al., Why Are Children Born to Teen Mothers at Risk for Adverse
Outcomes in Young Adulthood? Results from a 20-year Longitudinal Study, 13 DEV. &
PSYCHOPATHOLOGY 377, 391 (2001).
232 Id. at 389.
233 J.B. Hardy et al., Like Mother, Like Child: Intergenerational Patterns of Age at First
Birth and Associations with Childhood and Adolescent Characteristics and Adult Outcomes
in the Second Generation, 34 DEV. PSYCHOL. 1220, 1229 (1998).
234 Pogarsky et al., supra note 227, at 333.
235 Id.
for financial security, they experience higher levels of family dissolution, and
they tend to exhibit ineffective parenting styles. All of these factors reduced
parental educational attainment,237 economic disadvantage,238 family
disruption (including changes in parent figures and caregivers),239 and poor
parenting styles240 likely increase the risk of negative outcomes for children
of young mothers, married and unmarried alike.
Hardship and Adjustment of Early Adolescent Boys, 63 CHILD DEV. 526, 537 (1992).
240 Rolf Loeber & Maga Stouthamer-Loeber, Family Factors as Correlates and
Predictors of Juvenile Conduct Problems and Delinquency, 7 CRIME & JUST. 29 (1986).
241 See, e.g., Bellotti v. Baird, 443 U.S. 622 (1979) (extending to minors the right to
terminate a pregnancy but upholding parental consent laws with the provision that a judicial
bypass procedure be available).
2012] AGE OF MARITAL CAPACITY 1851
This Part argues that, in light of the evidence of the previous Parts, and in
light of what is known about adolescent cognitive development (relevant
aspects of which are summarized below), adolescents and emerging adults
have the cognitive capacity to give what currently amounts to legally valid
consent to marriage, but they lack the psychosocial capacity to perform the
contract. This Part further argues that both of these are required for marital
capacity, and thus both ought to be required for a valid marriage.
1. Capacity to Consent
Freely given consent has long been the sine qua non of a valid marriage.242
U.S. marriage law derives from contract law three basic requirements for valid
consent: legal capacity, mental or cognitive competence, and voluntariness
(absence of duress or undue influence).243
Legal capacity refers to the presumptive ability to enter binding contracts at
all. The law variously withholds from certain categories of individuals the
power to enter contracts, or it refuses to enforce against categories of
individuals agreements they have made.244 Categorical capacity/incapacity
reflects a determination that an identifiable group of individuals predictably
lacks some characteristic necessary to perform an act of legal consequence.
Enslaved people, married women, minors, and the mentally ill have all been
denied legal capacity at some point in the history of the United States.245 Into
the nineteenth century, for example, women lost their separate legal identities
upon marrying, as well as the capacity to take legal action in their own names
absent their husbands concurrence.246
The requirement of legal capacity today operates to exclude fewer
categories of individuals than it once did, instead more narrowly aiming to
identify those whose members lack a minimum level of cognitive and
decisionmaking competence. Minors and the mentally ill continue to
presumptively lack legal capacity; the members of both groups are deemed to
capacity as the legal power which a normal person would have under the same
circumstances, thus contemplating both legal capacity and mental competency).
244 Id. 12.
245 Id. 12 cmt. b. Contract law distinguishes incompetence due to pathological mental
illness from age-related immaturity. Thus in discussing the wide variety of types of
mental incompetency, the Restatement (Second) includes congenital deficiencies in
intelligence, the mental deterioration of old age, the effects of brain damage caused by
accident or organic disease, and mental illnesses evidenced by such symptoms as delusions,
hallucinations, delirium, confusion and depression. Id. 15 cmt. b.
246 1 WILLIAM BLACKSTONE, COMMENTARIES *442-43. A wifes legal personhood was
247 Minors gain legal capacity once they reach the age of majority, and upon gaining or
regaining capacity, both minors and the mentally ill may elect to either ratify or disaffirm an
agreement entered during their period of incapacity. RESTATEMENT (SECOND) OF
CONTRACTS 12; see also Hunt v. Hunt, 412 S.W.2d 7, 17 (Tenn. Ct. App. 1965) (holding
that a person who lacks mental competence at the time marriage was entered may
nonetheless ratify the decision to marry upon regaining competence and by doing so
validate the marriage); Elizabeth Scott, The Legal Construction of Adolescence, 29 HOFSTRA
L. REV. 547, 560 (2000).
248 Nave v. Nave, 173 S.W.3d 766, 774 (Tenn. Ct. App. 2005).
250 Id. 176. As is the case with nonage, however, a person who enters a marriage under
duress or as a result of undue influence may choose later to either invalidate or ratify the
marriage contract. Id. General contract law provides that if the other party to the
transaction induced the assent, the contract is voidable, but if a third party induced the
assent without the knowledge of the other party to the transaction, who has in good faith
relied on the contract, the contract is valid. Id. Courts deciding the validity of marriages
allegedly entered under duress or undue influence have not applied this exception, however.
251 See supra note 121 and accompanying text.
2012] AGE OF MARITAL CAPACITY 1853
2. Capacity to Sustain
It is one thing to make a marital commitment; it is another to keep it. Some
functional aspects of marriage and marital family life have remained largely
unchanged over time couples generally share a household, bear and raise
children, and assume obligations of financial support. Other aspects of married
life have changed drastically. This Article argues that a historic confluence of
economic and cultural developments has fundamentally altered modern
marriages and also the capacities required for them to flourish. These
developments have rendered marriage more difficult to sustain than at any time
in history.
First, economic changes have significantly altered the means by which
married couples are most likely to support their families and achieve financial
security. The disappearance of home and agricultural production, then of the
family wage, have pushed both members of marital couples into the paid
workforce. And now virtually all non-menial jobs require credentials of
some sort increasingly, a college degree.253 Young people with a high school
education or less are likely to experience several years of career instability
characterized by periods of unemployment and a series of dead-end, minimum-
wage jobs.254 The financial instability linked to low educational attainment
decreases the ability to comfortably support a family and increases marital
stress and the likelihood of marital dissolution.255
Second, cultural understandings of and expectations for marriage have
changed significantly. Todays normative marriage is a union of soulmates
who share intimacy and romantic love, and who foster each others personal
growth and fulfillment. As the division of labor within marriages has become
less gendered, moreover, so too has the marital relationship itself; it is no
longer a presumptive hierarchy in which wives submit to their husbands
authority. Instead, marriage has become a more complex partnership of
equals, who now must negotiate market and household work and childrearing
in an egalitarian manner.256
252
Part III.B examines the age-related attainment of the capacity to consent.
253 Marilyn J. Montgomery & James E. Cote, College as a Transition to Adulthood, in
BLACKWELL HANDBOOK OF ADOLESCENCE 149, 156 (Gerald R. Adams & Michael D.
Berzonsky eds., 2003). On average, an individual with a bachelors degree has between
twenty and forty percent higher earnings than a high school graduate. Id.
254 Fred W. Vondracek & Erik J. Porfeli, The World of Work and Careers, in
256 One study comparing the reasons given by couples for their divorces between 1949
1854 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
and 1996 in the Netherlands found that [t]he reasons for divorce appear to have shifted
from behavioral problems to relational problems. Paul M. de Graaf & Matthijs Kalmijn,
Divorce Motives in a Period of Rising Divorce: Evidence from a Dutch Life-History Survey,
27 J. FAM. ISSUES 483, 503 (2006). Couples have thus become less likely to cite behaviors
such as violence or infidelity as causes for their divorce, and more likely to cite
dissatisfaction with their relationships growing apart, receiving insufficient attention,
inability to talk to one another, etc. Women also increasingly cite dissatisfaction with the
division of household labor. Id.
257 Vannoy, supra note 115, at 259.
258 Id.
261 Nave v. Nave, 173 S.W.3d 766, 774 (Tenn. Ct. App. 2005) (emphasis added).
262
Laurence Steinberg et al., Are Adolescents Less Mature Than Adults?: Minors
Access to Abortion, the Juvenile Death Penalty, and the Alleged APA Flip-Flop, 64 AM.
PSYCHOL. 583, 590-92 (2009). In previous work, I have summarized in some detail research
in developmental neuroscience and psychology that has begun to explain the development
of adolescents decisionmaking capacities. See Vivian E. Hamilton, Democratic Inclusion,
Cognitive Development, and the Age of Electoral Majority, 77 BROOK. L. REV. 1449, 1507-
13 (2012); Vivian E. Hamilton, Immature Citizens and the State, 2010 BYU L. REV. 1055,
1110-16.
263 Laurence Steinberg, A Social Neuroscience Perspective on Adolescent Risk-Taking,
example, that even when they know the statistical likelihood of marital failure
to be around 50%, adults estimated the likelihood of their marriages
succeeding to approach 100%.265 Given that the belief in the exceptionalism of
ones impending union is characteristic of adults, the presence of the same
characteristic in adolescent marital decisionmaking is insufficient to justify
recharacterizing their consent as irrational or incompetent. To do so would
subject adolescents to a higher standard of rationality in decisionmaking than
that to which the state currently holds adults.
Adolescents decisionmaking capacities are more susceptible than are
adults, however, to being confounded by the real-world contexts in which they
make decisions.266 Studies found that contexts that predictably compromise
adolescent decisionmaking include those requiring them to make decisions in
the heat of passion, in the presence of peers, on the spur of the moment, in
unfamiliar situations, . . . [and] when behavioral inhibition is required for good
outcomes.267 In other words, adolescents tend to make bad decisions in
emotionally charged or pressured situations, and they struggle to control
impulses that lead to undesirable behavior.268 Thus when they must make
265
See JEFFREY JENSEN ARNETT & JOSEPH SCHWAB, THE CLARK UNIVERSITY POLL OF
EMERGING ADULTS 16 (2012).
266 Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk
Making, 7 PSYCHOL. SCI. PUB. INT. 1, 1 (2006) [hereinafter Reyna & Farley, Risk and
Rationality]; see also Eric Amsel et al., Anticipating and Avoiding Regret as a Model of
Adolescent Decision-Making, in THE DEVELOPMENT OF JUDGMENT AND DECISION MAKING IN
CHILDREN AND ADOLESCENTS 119, 120 (Janis E. Jacobs & Paul A. Klaczynski eds., 2005).
268 Reyna & Farley, Teen Brain, supra note 266, at 60; Reyna & Farley, Risk and
Rationality, supra note 267, at 1. Even though they do not generally misperceive risks (if
anything, studies have tended to show that adolescents and adults both overestimate risk),
adolescents tend to weigh and value benefits more heavily than risks, as compared to adults.
Researchers advance a number of theories, some related to cognition and some grounded in
neural development itself, to explain this. Baruch Fischhoff, Assessing Adolescent
Decision-Making Competence, 28 DEVELOPMENTAL REV. 12, 19-20 (2008); see also Beatriz
2012] AGE OF MARITAL CAPACITY 1857
decisions quickly or under time pressure, when they are highly emotional or
stressed, when they are in unfamiliar situations, or when they are subjected to
external or peer pressure, adolescents decisionmaking suffers.
Some adolescents will consider whether to marry under unpressured,
considered circumstances, but many will not. An individuals manifestation of
assent is invalid if given involuntarily.269 Adolescents may be pressured to
marry by their older adult partners, parents, or other authority figures (such as
religious leaders). Couples faced with unintentional pregnancy may be
pressured to marry by parents or partners.
Even though some adolescents will consider marriage under stressful
situations, it is a decisionmaking context that differs, for example, from
impulsive and peer-influenced decisions to commit a crime, or even engage in
sexual activity itself.270 Instead, entering marriage is generally the sort of
considered decision that researchers have found adolescents capable of making
even under less-than-ideal conditions. Researchers analyzing the
decisionmaking processes of adolescent girls confronted with unintended
pregnancies, for example, found that those aged 14 to 17 appear to be similar
to legal adults in both cognitive competence and volition.271 Researchers also
found that these adolescents remain competent decision makers when facing
an emotionally challenging real world decision.272
Research thus suggests that adolescents, by ages fifteen or sixteen, have the
presumptive capacity to consent to marry. There are undoubtedly cases where
duress or undue influence will have rendered their consent involuntary. That
circumstances exist in individual cases that would legally vitiate or invalidate
expressed consent does not, however, extinguish adolescents presumptive
capacity to give what qualifies as legally valid consent.
270 See Jennifer Ann Drobac, A Bee Line in the Wrong Direction: Science, Teenagers,
and the Sting to The Age of Consent, 20 J.L. & POLY 63, 113-15 (2012) (proposing that a
minors consent to sex with an adult should be legally binding unless the minor voids assent
during minority). At least two-thirds of U.S. adolescents have had sex by twelfth grade.
Lisa J. Crockett, et al., Adolescent Sexuality: Behavior and Meaning, in BLACKWELL
HANDBOOK OF ADOLESCENCE, supra note 253, at 371, 373.
271 Bruce Ambuel & Julian Rappaport, Developmental Trends in Adolescents
Psychological and Legal Competence to Consent to Abortion, 16 LAW & HUM. BEHAV. 129,
148 (1992).
272 Id.
1858 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
dual-systems model, see B.J. Casey et al., The Adolescent Brain, 28 DEVELOPMENTAL REV.
62, 63 (2008), Charles Geier & Beatriz Luna, The Maturation of Incentive Processing and
Cognitive Control, 93 PHARMACOLOGY, BIOCHEMISTRY & BEHAV. 212, 216 (2009), and
Catherine Sebastian et al., Social Brain Development and the Affective Consequences of
Ostracism in Adolescence, 72 BRAIN & COGNITION 134, 138 (2010) (discussing aspects of
the dual-systems model).
277 Luna, Developmental Changes, supra note 268, at 257; Steinberg, supra note 263, at
9798. Researchers have more generally found the following personality traits and
contextual factors correlated with suboptimal choices: sensation seeking, impulsivity,
competitiveness, overconfidence, and the presence of peers. James P. Byrnes, Cognitive
Development During Adolescence, in BLACKWELL HANDBOOK OF ADOLESCENCE, supra note
253, at 227, 236.
278 Luna, Developmental Changes, supra note 268, at 257; Steinberg, supra note 263, at
9798.
279 Arnett, supra note 116, at 473.
280 Elizabeth S. Scott, Keynote Address: Adolescence and the Regulation of Youth Crime,
283
James E. Marcia, The Empirical Study of Ego Identity, in IDENTITY AND
DEVELOPMENT: AN INTERDISCIPLINARY APPROACH 67, 75 (H.A. Bosma et al. eds., 1994).
284 See Gordon Munro & Gerald R. Adams, Ego-Identity Formation in College Students
287 Arnett, supra note 116, at 478; Vondracek & Porfeli, supra note 254, at 120.
divorce, improve womens mental and physical health, and elevate womens
and childrens socioeconomic status.
1. Policy Considerations
Public support of marriage is costly. State and federal government subsidize
marital families, which receive billions of dollars annually in direct and
indirect benefits.289 Divorce, too, is costly. Particularly for mothers who have
forgone education and work experience within marriages, post-divorce life is
more difficult than never-married life. At least some will turn to the state for
public assistance to help support their families.
There is a growing body of evidence that young people do not achieve
marital capacity until their early twenties. And there is overwhelming
empirical evidence that early marriage ultimately harms the individuals who
marry (women in particular), provides little if any benefit to children, and
imposes significant costs on society.
To avoid the worst of these social costs, states should consider raising the
presumptive age of marital capacity to twenty-one or twenty-two. Empirical
evidence suggests that delaying marriage to twenty-two would result in the
most effective increase in stability. While stability continues to improve every
year after age twenty-two, it does so at a much slower rate. At the same time,
a number of age-related rights already accrue at twenty-one.290 Given its
current existence as a marker of maturity, then, there may be less political
resistance to having the right to marry also accrue at twenty-one.
States would do well to remove altogether statutory exceptions allowing
adolescents younger than eighteen to marry. Again, however, given that age
eighteen is currently the age of legal majority in most states and thus a marker
of adult entitlement, there may be less public resistance to a policy change that
retained eighteen as the minimum marital age, but that required young people
between eighteen and twenty-one to obtain judicial (not parental) approval
before obtaining a marriage license. Parental approval has provided little or no
safeguard against the instability of early marriages. Statutes might thus impose
clearer (and higher) standards for judicial approval.
2. Constitutional Considerations
For young people wanting to marry, state regulations denying them that
ability constrain their liberty. After the Supreme Court explicitly declared
marriage to be a fundamental right,291 young couples challenged the age-based
regulations imposed by several states as unconstitutional infringements on their
right to marry. None of these challenges succeeded, however, and the courts
have universally found marital age restrictions to be constitutionally
(1967).
1862 BOSTON UNIVERSITY LAW REVIEW [Vol. 92:1817
acceptable.292 Age restrictions, courts have reasoned, do not deny couples the
right to marry but instead merely delay their entry into marriage and thus do
not constitute the sort of substantial interference with the fundamental right to
marry that the Supreme Court has held impermissible.293
States remain free to extend greater liberties than those minimally required
by the Constitution, and as discussed above, many states have done so. The
statutes that allow adolescents to marry, however, are not constitutionally
compelled.
The right to direct the upbringing and education of ones children has also
been deemed fundamental.294 Parents retain this right until their children reach
the age of majority, although the states role as parens patriae justifies
widespread measures (for example, compulsory education requirements) aimed
at ensuring the well-being of minors. Provisions requiring minors to obtain
parental consent prior to marrying thus reflect respect for deference to parental
authority; but they also delegate to parents the task of ensuring the adequate
maturity of those minors wishing to marry. As this Article has argued, the
empirical evidence makes clear that this delegation is at best an
unsuccessful one.
CONCLUSION
In the preindustrial economy, marriage served pragmatic ends ensuring
economic survival through combined spousal effort, ideally aided by the labor
of children. Expectations of the marital relationship were similarly pragmatic.
The structural and cultural changes of postindustrial society have forced
fundamental change on the institution of marriage: economic security
increasingly requires extended formal education; increased gender equality and
the availability of market work has eliminated the inevitability of womens
economic dependence on marriage; divorce makes available a relatively
destigmatized exit from unsuccessful unions; and cultural changes have raised
the expectations of marital relationship, rendering it an intense intimate
relationship, and substantially more difficult to sustain than in the past.
The steady rise in the median age at first marriage to what are now historic
highs for both men and women evinces popular acknowledgement of, and
adaptation to, the new social context of marriage. The continued existence of
too-early marriages, however, unnecessarily imposes significant costs on
early marriers, their children, and society. The state does well to respect
individuals life choices, even when improvident. When those choices impose
sufficiently high costs on others, however, the state and its legal institutions
abrogate their proper roles by failing to respond appropriately. The high costs
imposed by early marriage require a legal response through which the law, too,
292 See, e.g., Moe v. Dinkins, 533 F. Supp. 623, 630 (S.D.N.Y. 1981).
293 See id.; Zablocki, 434 U.S. at 386.
294 Wisconsin v. Yoder, 406 U.S. 205, 214 (1971); Prince v. Massachusetts, 321 U.S.
158, 166 (1943); Pierce v. Socy of Sisters, 268 U.S. 510, 534-35 (1924).
2012] AGE OF MARITAL CAPACITY 1863
adapts to the new social context within which its members enter and endeavor
to sustain marriage.